[This post is now updated to include the Post Gazette's "botched investigation" story, which is slanted both against Roethlisberger and the truth.]
When the media received the investigation file in the Ben Roethlisberger case, it acted irresponsibly. It selectively reported allegations for which no probable cause to arrest existed. It gave the public a skewed understanding of the facts. There are plenty reasons to criticize Roethlisberger, but not for "rape." Here are the documented facts:
1. The DA indicated that both parties were exchanging sexual comments toward each other (that he would not repeat in public, because of their graphic nature). He said, "it was a two-way street ... -- him to her, her to him -- [it was] of a sexual nature." (DA press conference, PART-4, at 7:35, http://www.thepittsburghchannel.com/video/index.html [also at: http://www.youtube.com/watch?v=apBOClZNRzY]).
2. The accuser and her sorority sisters were wearing stickers that "had 'DTF' written on the bottom of the name tag ... [which] stood for 'down to fuck.'" (See Page 4 of 6 of police report, exhibit 16. http://www.thesmokinggun.com/archive/years/2010/0415101roethlisberger15.html)
3. The accuser also said to Willie Colon, "You know my nickname?" -- and then answered by saying "DTF." When Colon asked what that meant, the accuser replied , "Down to fuck." (See Colon's police statement here: http://www.thesmokinggun.com/archive/years/2010/0416103willie2.html)
4. The accuser "repeatedly attempted to get Roethlisberger's attention, including pinching him" ... and pestering Willie Colon to talk to Ben for them. (See Colon's police statement: http://www.thesmokinggun.com/archive/years/2010/0416103willie2.html)
5. The accuser was heavily intoxicated. [numerous sources].
6. The accuser was led down a hall toward a bathroom. (DA News Conference, PART-1, at 3:10. http://www.thepittsburghchannel.com/video/index.html [also at: http://www.youtube.com/watch?v=liHs6C7ajzg]).
7. There was a stool outside the bathroom. The club manager, Duncan, told police that he saw "a young lady sitting outside of the stool, talking to Ben." (Duncan's Statement is quoted by CNN here: http://www.cnn.com/2010/CRIME/04/16/roethlisberger.incident/index.html)
8. The accuser was sitting on the stool talking with Ben for a little while. Duncan says, "... at last glance the [accuser] was still sitting outside the bathroom talking to Ben. That was the last I noticed of the situation." (Duncan's Statement is quoted by CNN here: http://www.cnn.com/2010/CRIME/04/16/roethlisberger.incident/index.html)
9. The bathroom had cramped quarters -- less than 5 foot wide single-commode bathroom. (DA News Conference, PART-1 http://www.thepittsburghchannel.com/video/index.html [also at: http://www.youtube.com/watch?v=liHs6C7ajzg])
10. According to a police statement: "Roethlisberger explained to Aurila that nothing had happened and that Roethlisberger was in the back with a girl and they were "messing around." Roethlsberger then explained that the girl slipped and he helped her up and then came back out. Aurila stated that he took "messing around" to mean" kissing, whatever. ... Roethlisberger indicated to Aurila that the girl had slipped and that he had helped her up and once Roethlisberger had helped her up he told the girl that they were not going to continue. ... During the conversation, Aurila described Roethlisberger's demeanor as angry and shocked that this [the accusation] was happening." (Police report, pg. 5 of 7, http://www.thesmokinggun.com/archive/years/2010/0415101roethlisberger19.html)
11. The accuser had a "superficial laceration" in the genital area, described by DA [and medical authorities] as consistent with having sex. (Or slipping while having it?). (DA press conference, PART-1 at 3:50. http://www.thepittsburghchannel.com/video/index.html [also at: http://www.youtube.com/watch?v=liHs6C7ajzg]).
12. THE SORORITY SISTERS STARTED THE INITIAL COMMOTION. They felt the accuser was too drunk to be fraternizing with Roethlisberger. So they acted based upon that judgment. The facts are:
(A) The sorority sisters complained to the club manager that Ben and accuser were together in the locked bathroom. (citation forthcoming)
(B) The sorority sisters are the ones who complained to police and said it was a "rape." From the DA conference: "The Sorority Sisters were doing the talking [making the accusation]." (See DA press conference, PART-2, starts 2:42 and key part at about 3:10 and 4:00: http://www.thepittsburghchannel.com/video/index.html [also at: http://www.youtube.com/watch?v=vaRGdYizw7g]) (See also, DA interview, PART-3, 10:20 http://www.thepittsburghchannel.com/video/index.html [also at: http://www.youtube.com/watch?v=9PsdE_KudoY]).
(C) The officer at the scene was perturbed by the fact that the sisters were doing the talking. Post-Gazette: "The victim's friends got on Blash's Nerves because he kept asking them were they back there with her, and they said no. The victim's friends were trying to tell what was going on more than the victim was, and the victim could not answer Blash's questions."
13. THE ACCUSER HERSELF WAS UNCERTAIN ABOUT THE MATTER. When the officer on the spot said "I need to talk to the alleged victim, not [the sorority sisters]," he asked the accuser if Roethlisberger had raped her. She said:
(A). "No." (DA news conference; PART 2, starts 2:42, key point: about 4:10: http://www.thepittsburghchannel.com/video/index.html [also at: http://www.youtube.com/watch?v=vaRGdYizw7g])
(B) When asked if the two had sex, she said "well, I'm not sure." (DA interview, PART 2, starts 2:42, key point: about 4:20: http://www.thepittsburghchannel.com/video/index.html [also at: http://www.youtube.com/watch?v=vaRGdYizw7g]).
- (Blash also said she seemed inebriated, incoherent, "nonchalant," and at times seemed to to want to tell someone that "y'all did whatever.")
[The above was Officer Blash's account when interviewed by a special officer on March 15th.. His earlier account when interviewed by a special officer on March 5th, one day after the incident, is quoted below. He says that: (a) Roethlisberger didn’t force himself on her, but kept asking; (b) she said she wasn’t raped, but kept saying “I don’t know if we should be doing this here.” See below:]
(C) “While Mr. Blash wasn't around, Officer Lopez interviewed the woman in a squad room at the station. … She told him something that officers found perplexing: the woman claimed that she and the 6-foot-5 Mr. Roethlisberger had sex while she was sitting on the toilet. He also said that, during the entire episode -- which the accuser alleged took 3 minutes (see below) -- that she never said "no." (She never even said, "I was scared to say no" or "I wanted to tell him to stop"). The quote is as follows:
(D) According to Officer Davidson, the accuser said back at the station house that "I don't think this is ok," (indicating equivocation) and "I should not have done this," (indicating regret after the fact). The officer's statement is below:
(E) The accuser gave a statement that night to police that said, "They met us at the Brick and called us a 'tease.' .... His body guards took him back to the rooms in 1 bathroom. I said, 'I don't know if this is a good idea,' and he said, "it's ok.' He had sex with me ... ." (See Police report: March 4th. http://www.thesmokinggun.com/archive/years/2010/0415101roethlisberger3.html)
(F) At the hospital that night, she said "a boy kinda raped me." (DA press conference, PART-2 at 6:00. http://www.thepittsburghchannel.com/video/index.html [also at: http://www.youtube.com/watch?v=vaRGdYizw7g]).
13. THE ACCUSER'S NEXT-DAY STATEMENT OFFERED A CHANGED STORY. The next day, this is what the accuser said:
(A). "His bodyguard came and took my arm and said come with me, he escorted me into a side door/hallway, and sat me on a stool. He left and Ben came back with his penis out of his pants. I told him it wasn't OK, no, we don't need to do this and I proceeded to get up and try to leave. I went to the first door I saw, which happened to be a bathroom. He followed me into the bathroom and shut the door behind him. I still said no, this is not OK, and he then had sex with me. He said it was OK. He then left without saying anything." (See DA press conference, PART-2 5:25. http://www.thepittsburghchannel.com/video/index.html [also at: http://www.youtube.com/watch?v=vaRGdYizw7g]).(See also, CNN account of accuser's statement: http://www.cnn.com/2010/CRIME/04/16/roethlisberger.incident/?hpt=Sbin).
[Note several things. 1. This latest version of events suggested that Ben is commencing activities OUTSIDE the bathroom. This contradicts the eyewitness claims that: (a) she was seen talking with Ben at the stool outside the bathroom for a period of time (See bar manager's statement); and (b) that no evidence of sex outside the bathroom exists. No one in the VIP area of any entourage or any body guard saw anything like that. (See: DA CONFERENCE, PART-3, starting at 8:30. http://www.thepittsburghchannel.com/video/index.html [also at: http://www.youtube.com/watch?v=9PsdE_KudoY]).
Finally, note that this new version of events selectively fixes the accuser's earlier statements. It fixes the rape-denial and equivocation she expressed about the encounter while retaining other things as accurate (e.g., "he said it was okay."). In other words, what helps her is retained, and what doesn't is not.
14. THE ACCUSER BACKED OFF SOON AFTERWARD. Soon after giving the next-day statement, the accuser began frustrating police. She did the following:
(A) From the Post Gazette: The Georgia Bureau of Investigation had trouble contacting "both the accuser and her lawyer, who did not return numerous calls from the agency" ... "Special Agent Monica Ling, the lead investigator, tried to reach the accuser 'numerous times' over the weekend of the alleged assault without success. Lee Parks, the woman's lawyer, finally called on the evening of March 7. Agent Ling said she wanted to take swabs from inside the woman's cheeks. Agent Ling reported having trouble reaching Mr. Parks the next week," and was eventually told the accuser could not help at this time.
(B) On March 17th, through her attorney's letter, the accuser says she doesn't want to go forward with it.
(C) When investigators had met with the woman, they were told unequivocally that the accuser did not want to go forward with the case. (soruce: Post Gazette)
[One should note that the vast majority of civil plaintiffs would want criminal cases going on concurrently. Any lawyer will tell you that a civil plaintiff is helped by a criminal case going first. One must assume that the accuser's reluctance here indicates one of two things: (a) the civil matter was already on a quick course of settlement; or (b) depositions and other matters may have rendered the next-day's position problematic. It is true that media frenzy and privacy are good reasons not to pursue things. But is this true if you have been wronged and can receive a major damage award? Or is it true if you have a drunken encounter and regret it? How many people get raped by millionaires and don't want to pursue even a civil case? And how many want to pursue one without pursuing a criminal case (the former helps the latter)?].
13. Both the DA and the police believe not only that there was not enough proof to win their case, but that THERE WAS NOT EVEN PROBABLE CAUSE TO ARREST. Think about that. Law enforcement officials think that the sorority-girls version of events isn't even worthy of an arrest. (See DA News Conference, PART-1 12:00. http://www.thepittsburghchannel.com/video/index.html [also at: http://www.youtube.com/watch?v=liHs6C7ajzg]).
Will anyone out there listen? People have every right to be disgusted with Roethlisberger for things like buying shots for girls, behaving like a "meathead," wanting a gigolo lifestyle and engaging in drunken, callous and risky encounters with strangers. But they DON'T have ANY right to be disgusted with body guards dragging people back to rooms, with sex against a person's will, with "she reported it quickly," and that, "he exposed himself and she ran away, accidentally to a bathroom."
The press is smearing Roethlisberger. Can we please make sure that, if we abuse him, it is for the FACTUAL THINGS and not a public lynching?
Some people have argued that drunken sex is, by definition, "rape." This isn't true. This confuses "consent" in law with "capacity." Consent is merely an act of volition (will); it doesn't require an intelligent choice. Having a drunken escapade that you later regret doesn't mean that you "didn't consent." If drunken sex was outlawed, both parties to the escapade could claim to be "raped," because any of the touchings that either person performed could be said to be "not consented to" (because of alcohol). So the issue is not that drunk people are forbidden from having sex; the issue is whether one of the drunken parties is being forced to have it, against his or her wishes AT THAT TIME.
Also, we can't be too patriarchal here. We can't apply what academics call a "gender construction." You have two people here being sexual with each other throughout the night and both are impairing their judgments with alcohol. The night ends with an encounter that appears to have been ambiguous and was regretted. That's what a prudent look at the facts shows. And it is perfectly permissible to criticize either Roethlisberger or anyone else for having an ambiguous encounter with a stranger when both he and the stranger were suffering from impaired judgments after a night of sexual flirting. But what is NOT okay is to lynch Roethlisberger and call him a "rapist," when the facts supporting that allegation are not even worthy enough for an accusation under the law (probable cause).
And what may be worse is the media showing only the accuser's day-after (second) accusation, and not its surrounding difficulties. I wonder how many in America know right now that the accusation began with sorority sisters who objected to a drunken encounter, not with the accuser herself? Or that, even in the hospital, the accuser could not say the matter was clearly against her wishes at the time. How many today on the A.M. talk radio take the accuser's second-day version as "the accusation" rather than as a significant derogation of what all the evidence that night suggested?
Here's my point. I have no problem with criticizing Roethlisberger for numerous things. I have no problem if the league goes after him just for having drunken, callous and reckless encounters with strangers. My only concern is that they go after him on the FACTS -- not on this yellow journalism stuff. Stop the witch hunt, please.
Regards and thanks.
Dr. Sean Wilson, Esq.
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